Gray v. Hammond Lumber Co.

• Decision Date: 03 March 1925
• Citation: 113 Or. 570,234 P. 261
• Parties: GRAY v. HAMMOND LUMBER CO. ET AL.
• Court: Oregon Supreme Court

234 P. 261

113 Or. 570

GRAY v. HAMMOND LUMBER CO. ET AL.

Supreme Court of Oregon

March 3, 1925

Department 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Jessie M. Gray against the Hammond Lumber Company and W S. Lukins. On appeal from a judgment for plaintiff, judgment was affirmed as to the first-named defendant, and reversed as to W. S. Lukins. Plaintiff filed objections to the cost bill of the successful appellant. Objections sustained in part.

See also, 232 P. 637; 233 P. 561.

Goss &amp Murphy, of Marshfield, and Arthur K. McMahan, of Albany opposed.

PER CURIAM.

Respondent files objections to the cost bill of appellant W. S. Lukins as follows:

"First, there is no authority in law for the charge filed for the undertaking; and, second, none of said items of costs or expenses were incurred by defendant Lukins, and neither has he obligated himself to pay any part thereof, but, on the contrary, all of said items of expenditure and costs, and each and every one of them, were paid by the Hammond Lumber Company, or else by the Casualty Insurance Company, under which it was operating."

Section 6438, subd. 5, Oregon Laws, reads:

"In all actions and proceedings a party entitled to recover disbursements therein shall be allowed and may tax and recover such sum paid a person or company for executing any bond, recognizance, undertaking, stipulation, or other obligation therein, not exceeding, however, one per cent. on the amount of such bond, recognizance, undertaking, stipulation, or other obligation during each year the same has been in force."

This statute authorizes the recovery as a disbursement of the premium paid on an appeal bond, limited to 1 per cent. on the amount of such bond during each year in force. Fischer v. Bayer et al., 108 Or. 319, 211 P. 162. A supersedeas bond having been filed covering the amount of the judgment rendered against the appellants jointly, and for costs on appeal, the liability would necessarily be placed at approximately $7,000, and not more than one year having elapsed, the total amount of premium should not exceed $70.

In the case of Fischer v. Bayer et al., supra, it was stated, at page 321, 211 P. 163:

"The rule is, that where there are several appellants, some of whom are successful, they are entitled to a full bill of costs, less such charges as relate exclusively to appellants who have failed. 15 C.J. 91, 92."

The...